92 Decision Citation: BVA 92-00543
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-38 195 ) DATE
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THE ISSUES
1. Entitlement to an increased (compensable) rating for
bilateral hearing loss.
2. Entitlement to an increased (compensable) rating for
otitis media.
3. Entitlement to an increased (compensable) rating for
tinnitus.
4. Entitlement to a compensable evaluation under the
provisions of 38 C.F.R. § 3.324.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Joseph P. Gervasio, Jr., Counsel
INTRODUCTION
This matter came before the Board on appeal from a February
1991 rating decision of the St. Paul, Minnesota, Regional
Office (hereinafter RO), which continued noncompenable
evaluations that have been in effect since 1961. The veteran
served on active duty from July 1944 to January 1947.
The veteran's notice of disagreement was received by the VA
in April 1991. The statement of the case was issued in
April 1991 and the veteran's substantive appeal was received
in June 1991. The case was received and docketed at the
Board in July 1991. It was then referred to the veteran's
representative for additional argument which was received in
September 1991.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his bilateral hearing loss, otitis
media and tinnitus are more disabling than currently
evaluated. He points out that he has been given hearing
aids by the VA and that audiometric evaluations show that
his hearing has worsened. He also asserts that he suffered
a concussion while on active duty just prior to his hearing
loss and that he was exposed to significant acoustic trauma
during service as a mechanic in a ship's engine room.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth it is the
decision of the Board that the preponderance of the evidence
is against the claims for increased evaluations for bilateral
hearing loss, otitis media and tinnitus, but supports a
compensable evaluation based on multiple noncompensable
disabilities under the provisions of 38 C.F.R. § 3.324.
FINDINGS OF FACT
1. Bilateral hearing loss is currently manifested by
average pure tone thresholds at 1,000, 2,000, 3,000 and
4,000 hertz of 79 decibels in the right ear and 71 decibels
in the left ear and speech recognition ability 86 percent in
the right ear and 90 percent correct in the left ear.
2. The veteran's otitis media is not currently shown to be
symptomatic.
3. The veteran has constant tinnitus that has not been found
to be the result of documented acoustic trauma, concussion
or head injury.
4. The veteran's multiple noncompensable disabilities
clearly interfere with normal employability.
CONCLUSIONS OF LAW
1. A compensable evaluation for bilateral hearing loss is
not warranted. 38 U.S.C. §§ 1155, 5107 (formerly §§ 355,
3007) (1988); 38 C.F.R. § 4.85 and Part 4, Code 6100.
2. A compensable evaluation for otitis media is not
warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4,
Code 6200.
3. A compensable evaluation for tinnitus is not warranted.
38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, Code 6260.
4. A compensable evaluation for multiple noncompensable
disabilities is warranted. 38 C.F.R. § 3.324.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
At the outset, we find that the veteran's claim is "well
grounded" within the meaning of 38 U.S.C. § 5107. That is,
the benefits could be granted if the essential contentions
were found to be supported by the evidence. It is also
noted that it does not appear that there might be other
evidence not already of record that would furnish additional
pertinent facts to support the veteran's contentions.
Therefore, no further assistance to the veteran is required
to comply with the "duty to assist" mandated by 38 U.S.C.
§ 5107(a). Finally, we find that the recent examination
reports of record constitute new and material evidence such
that the claims have been reopened. 38 U.S.C. § 5108
(formerly § 3008).
The Veteran's service connected ear conditions share a
common etiology. The service medical records show that he
was diagnosed as having scarlet fever in August 1944.
Concurrent with this infection he developed pain in both
ears. He was diagnosed as having mastoiditis in November
1944 and a mastoidectomy was performed on the right ear at
that time. Otitis media, hearing loss and tinnitus were
diagnosed by the VA on examination in Sept. 1961. No
medical evidence concerning these conditions was added to
the record prior to his current claim.
I. Bilateral Hearing Loss
Disability evaluations of bilateral hearing loss are based
upon the results of pure tone audiometry tests in combination
with controlled speech discrimination testing. 38 C.F.R.
§ 4.85. While the veteran argues that the fact that he has
been given hearing aids by the VA shows a worsening of his
condition, disability evaluations derived from the rating
schedule are intended to make proper allowance for improve-
ment by hearing aids. An examination to determine
improvement is, therefore, unnecessary. 38 C.F.R. § 4.86.
In the instant case, the veteran underwent an audiometric
evaluation most recently in February 1991. Following the
examination, the chief of the VA audiology-speech pathology
clinic certified that the veteran's bilateral hearing loss
was currently manifested by average pure tone thresholds at
1,000, 2,000, 3,000 and 4,000 hertz of 79 decibels in the
right ear and 71 decibels in the left ear and speech
recognition ability 86 percent correct in the right ear and
90 percent correct in the left ear. Under the rating
schedule, hearing loss of this severity is not considered to
be disabling to a compensable degree. 38 U.S.C. § 1155;
38 C.F.R. §§ 4.85, 4.86 and Part 4, Code 6100.
II. Otitis Media
Compensable evaluations of otitis media are based upon the
continued presence of suppuration, or infection and drainage
of the ear. 38 C.F.R. Part 4, Code 6200. On ear, nose and
throat evaluation by the VA in February 1991, both ear canals
and tympanic membranes were normal. As the veteran's otitis
media is not currently shown to be manifested by a
suppurative process, an increased rating is not warranted.
38 U.S.C. § 1155; 38 C.F.R Part 4, Code 6200.
III. Tinnitus
On examination by the VA in February 1991 the veteran had
complaints of constant tinnitus. Under the law, such
persistent tinnitus is compensable when it is a symptom of a
head injury, concussion or acoustic trauma. A review of the
service medical records shows that the veteran's ear
disability had its onset and was associated with an episode
of scarlet fever the veteran had during service. As a head
injury, concussion or acoustic trauma has not been documented
in the service medical records, a compensable evaluation is
not warranted. 38 C.F.R. Part 4, Code 6260.
IV. Multiple Noncompensable Disabilities
The veteran has three service-connected disabilities, all of
which are evaluted as zero percent disabling. When such a
circumstance exists, consideration must be given to the
provisions of 38 C.F.R. 3.324. This regulation sets forth a
criteria for a 10 percent disability rating that may be
authorized for the presence of multiple noncompensable
disabilities. The main prerequisite is that the disabilities
be of such character that they clearly interfere with normal
employability. After review of the record, we believe this
to be the case. While the veteran's hearing loss is not
considered to be disabling to a compensable degree, the
veteran does have significantly high pure tone threshold
levels. He also has constant tinnitus which surely has a
negative impact on his normal work day. Under these
circumstances, it is believed that a 10 percent rating under
the provisions of 38 C.F.R. 3.324 is warranted.
(NOTE: The section numbers of title 38, United States Code,
were changed in 1991. The new section numbers are given
above, followed, in parentheses, by "formerly 38 U.S.C." and
the old section numbers in effect prior to the 1991
revisions.)
ORDER
An increased rating for bilateral hearing loss, otitis
media, and tinnitus is denied.
A 10 percent evaluation based upon the provisions of
38 C.F.R. 3.324 is granted, subject to the controlling
regulations governing the payment of monetary benefits.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
J. F. GOUGH W. H. YEAGER, JR., M.D.
J. E. DAY
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. 7266 (formerly
38 U.S.C. 4066), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or
benefits, sought on appeal is appealable to the United
States Court of Veterans Appeals within 120 days from the
date of mailing of notice of the decision, provided that a
Notice of Disagreement concerning an issue which was before
the Board was filed with the agency of original jurisdiction
on or after November 18, 1988 (see sec. 402 of the Veterans'
Judicial Review Act (Pub. L. 100-687)). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal
by the Board of Veterans' Appeals.